Chertoff on final Real ID rules: “Reconfiguring our society”

In announcing the final Real ID rules, DHS Secretary Chertoff's message was …

Secretary Michael Chertoff, head of the Department of Homeland Security, announced a set of final revisions to the controversial Real ID Act in a press conference this morning. It's not clear at this point how extensive those revisions truly are, but it is clear that DHS feels that the rules are now in their final form and that the period for discussion, revision, and dispute is now over.

"There comes a point in time where all the discussion and analysis has to stop. We are now six years away from 9/11. Simply kicking this problem further down the road is a time-tested Washington way of smothering a proposal with process," said Chertoff. "The time has come to bite the bullet." Or, as Jack Bauer might say (while in the midst of breaking half a dozen laws in the name of stopping an impending attack), "We're running out of time!"

Chertoff summarized the major features of the final rules as follows:

People must provide documentation that proves who they are and that they're here in this country legally

The DMV must verify that the documents they're being presented with are legit, and take steps to protect their own databases from misuse.

Licenses must meet tamper-proof standards

States have to work together to assure that individuals aren't able to obtain driver's from multiple states in an improper manner

Again, there's nothing really new here in big-picture terms, but a closer examination of the rules when they're published in the Federal Register may turn up some major concessions on the government's part.

Chertoff emphasized that DHS revised the rules in close consultation with the states in order to address concerns about implementation costs. "Contrary to what some people say, this is not just the federal government big-footing itself onto the states. We had a great deal of consultation [with the states]. So, this is very much the product of a lot of listening, and a lot of careful consideration."

Chertoff claims that as a result of some revisions to the rules, like allowing the states more flexibility in meeting Real ID's citizen identification and database access requirements, the cost to states has been cut by three quarters. He noted that the average cost for a Real ID-compliant license is now $8 per license.

It may not be a "national ID card," but it's still a matter of national security

While Chertoff was a pains to emphasize DHS's willingness to accommodate concerns from the states in formulating the final rules, he was equally insistent that DHS had given no quarter to the whining of civil libertarians and privacy advocates.

Chertoff first addressed privacy advocates by declaring, "We are not going to have a national database." Rather, Real ID will link databases together with a unified query service, in a manner that enables them to function as a de facto national database. (See the difference?)

"This is a great teaching moment on the challenges of really reconfiguring our society so that we can take reasonable steps to secure ourselves in a way that is nevertheless consistent with our civil liberties and our prosperity," Chertoff said in the Q&A session following the announcement.

Chertoff also hauled out a very large civil liberties strawman—that privacy advocates are "against all identification" and (by implication) don't care if "Mohammed Atta number two" gets on an airplane—and proceeded to absolutely beat it like a piñata throughout the course of the announcement and subsequent Q&A session.

The secretary repeatedly characterized opponents of Real ID as being in favor of weak forms of ID on the premise that more secure forms of ID will lead to a false sense of security.

(This is only half true. Opponents of Real ID are opposed to a reliance on positive identification as front-line security measure. As Bruce Schneier has argued, positive identification is not a good proxy for "intent to do harm," since very few suicide bombing recruits have a history of terrorism the way that criminals have a history of crime. Andrew McCarthy, a former federal anti-terror prosecutor and a figure who's firmly in the "democracy and national security are incompatible in an age of nuclear terrorism" camp, made much the same point about the difficulty of identifying terrorists in a speech that I reported on last year.)

At any rate, it's not at all clear to me how to square Chertoff's characterization of Real ID as an urgent matter of national security with DHS's past insistence that Real ID is not an attempt to make the driver's license a de facto national ID card, but perhaps a reader could enlighten me on this point.

Stopping illegals and ID thieves

Chertoff also took a hardline stance against illegal immigration and identity theft, citing both of these issues as almost on par with national security concerns in the implementation of the new rules.

The announcement's emphasis on ID theft and illegal immigration was prefigured in Chertoff's speech during an advisory council meeting yesterday, where the secretary stated that "false identification facilitates illegal immigration, which I'm hearing again and again as a very big concern for the American people. False identification facilitates identity theft."

Chertoff suggested in the Q&A that employers would flock to adopt Real ID as a method for screening potential employees to ensure that they are US residents. There are no laws currently on the books that force employers to use Real ID, but Chertoff made the case that a desire to be in compliance with existing employment law would create a "demand" for positive ID that Real ID would then meet for employers.

The secretary also repeatedly emphasized the importance of a reliable driver's license as an identity theft prevention measure. You might think that the federal government's repeated accidental exposures of citizens' data through security lapses would pose a larger threat to the security of our identities than fake IDs, but DHS's press release claims that fake driver's licenses were used in 35 percent of the ID theft cases that the Secret Service investigated between 2000 and 2006.

If your state doesn't comply, it'll be no fun to fly

Because the Real ID rules are all opt-in, states can still refuse to comply with the requirements. However, if your license is issued by a non-compliant state, then you can expect to have a hard time getting on an airplane.

"If a state were to opt out of this, then their license would no longer as a matter of law be accepted as as proper identification for getting on an airplane," said Chertoff. He later explained that people from states that opt out can still get on airplanes and into federal buildings by "bringing other documents that are satisfactory." Either that, or they'll have to go into secondary screening, which means a sit-down interview with an agent.